Real Estate Law

Real Estate Law in CanadaA real estate transaction – buying or selling a home – is often the largest financial transaction in an individual’s life, and it is critical to have quality legal representation during that time. Right Legal can help you find the right lawyer for any of your real estate needs, whether you are buying or renting a home, or any other sort of real property.

What is real estate law?

Real estate law is the law governing the acquisition, use, and disposition of real property in Canada. “Real property” is best thought of as land, and anything permanently attached to the land, and includes empty parcels of land as well as houses, apartments, and any other type of permanent structure. The most common types of real estate transactions are the buying and selling of homes, as well as applications to re-zone a particular building or group of buildings (which also involves a great deal of municipal law). Landlord and tenant relationships are also considered under the heading of real estate law.

Real property in each province is handled in some form of a land titles system. The Land Titles Office acts as a permanent, government-certified and searchable registry for ownership of all real property in the province. An individual does not legally “own” real property unless that ownership is registered with the Land Titles Office and they are issued a Certificate of Title.

What laws govern real estate in Canada?

The Canadian Constitution gives the provinces jurisdiction over property, and as a result a vast majority of the legislation concerning real estate is made at the provincial (and municipal) level. Provinces will have statutes concerning a number of real property and real estate issues, such as the Land Stewardship Act, the Mines and Minerals Act, the Public Lands Act, the Land Titles Act, and the Law of Property Act. All provinces will also have a Residential Tenancies Act governing tenancy within the province.

What sort of work would a real estate lawyer be involved in?

The primary work of a real estate lawyer will be in the buying and selling of real property (a process known as a “conveyance”). To engage in conveyances, a lawyer must have a trust account (where they will hold money that legally belongs to one of their clients), and the work of conveyances is a specialized field for paralegals. Conveyancing paralegals will spend a great deal of their time filling out and filing documents with the province’s Land Titles Office.

Lawyers representing landlords and tenants can be involved in drafting tenancy agreements and negotiating tenancies. In residential tenancy situations, it is highly unusual for lawyers to be involved in the formation of the tenancy, except for perhaps drafting the initial documents for the landlord. However, if there is a dispute about the tenancy, such as an eviction without notice or damage to the property, lawyers may become involved. Provinces will have a Residential Tenancy Dispute Resolution Service that individuals can bring their claims through before having them heard in the court system.

Points of Interest

There exists a much greater degree of protection for tenants in residential tenancies than in commercial ones. In residential tenancies, the tenant is assumed to have a weaker bargaining position, and thus the Residential Tenancies Act affords the tenant a great deal of protection from abuses they might suffer from the landlord. In commercial tenancies, the parties are both assumed by the law to be on equal footing and have similar bargaining power, so no such protections are necessary.

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